Dec 1, 2025
One essential advantage of establishing and funding a revocable living trust is to avoid the expense and publicity of probate, eliminating the need for court supervision of the implementation of the estate plan. The “nonprobate revolution” in estate settlement began in the 1960s, and quickly became standard practice for many estate planners. Probate Court participation would then only be required if there is litigation, for example over the trust terms or the settlor’s capacity to establish a trust. As it happens, courts have been called upon to backstop and interpret some trusts, even when there is no controversy among beneficiaries.
Law professors Christopher J. Ryan, Jr., David Horton, and Reid Kress Weisbord studied the cases in San Francisco Superior Court over the seven-year period ending December 31, 2020. Through a filtering process they found that there had been 1,431 unique trust cases in that time frame. Of these, 971 cases did not involve litigation [“Uncontested Trusts in Court,” Maurer School of Law Legal Studies Research Paper Series (2025)].
The most common trust issue before the Court (417 instances) was the failure to finish the job of funding a living trust by the person creating the trust. They needed to convey the title on their financial accounts from them- selves as individuals to themselves as trustees; without that step the trust remains empty. The Court was petitioned to provide relief based upon the totality of the trust paperwork (including a completed schedule of proposed trust assets), and relief was granted in 72% of the cases.
Successor trustees
Another surprisingly common problem happened in securing a successor trustee for a trust. A well-crafted trust should anticipate this situation.
Example 1. Husband executed a testamentary trust in 1984. At that time Wife was 47 years old, and they had young children. Husband named Wife as trustee, and Son as successor trustee, with no process for further succession. When Son died in 2018, Wife realized that there was no other trustee to succeed her, so she turned to the Court to expand the list of potential successors.
Example 2. A trust created in 1982 required that a successor trustee be “one of the six largest California banks.” Unfortunately, when the issue of succession came up 36 years later, the trust held only $298,000. The six largest California banks at that time had $500,000 minimums for trust administration. The Court was petitioned to find an alternative for this trust.
Relief was granted in 92% of the cases involving successor trustees, but better trust drafting could have made the expense of going to Court unnecessary.
Modification or termination
Among the 971 uncontested trust cases were 188 requests for modification or termination of a trust. To terminate a trust the consent of all beneficiaries is traditionally required. Even then, the trust will not be ended if that would conflict with a “material purpose” of the trust’s settlor. Under California law, the material purpose must be balanced against the reasons advanced by the beneficiaries, such as changed circumstances.
One such changed circumstance might be the federal estate tax law. For decades, the standard estate plan for a married couple was a two-trust plan, one trust to absorb the benefit of the federal unified credit for estate and gift taxes and one deferring such tax through the marital deduction. A series of reforms since 2010 has made that structure suboptimal for most estates. First, the amount exempt from federal estate tax was lifted dramatically ($15 million per taxpayer in 2026), excusing the vast majority of estates from taxation, and second, the unified credit was made portable between married couples through the simple expedient of filing an estate tax return and making an election.
Although these changes were welcomed by estate planners, some families were slow to amend their estate plans in view of the new circumstances. The study found 42 requests to not create the two trusts called for in an estate plan on the grounds that the approach had become “obsolete and, overall, tax inefficient.” The inefficiency comes from a loss of a basis step-up when the surviving spouse receives less than all the property in a form includible in his or her estate.
Generalizations
The authors acknowledge limitations of their study, in that San Francisco may not be typical of the rest of the country, given the unusual wealth levels of its residents and their propensity to create trusts for wealth management. They also don’t know how many active trusts there are in the San Francisco jurisdiction, which would provide a context to determine if 142 uncontested trust cases each year is a lot or a little.
If your estate plan involves the use of trusts, your next plan review should include attention to issues, such as successor trusteeship, that can be handled by the trustee without Court supervision.